197 F. 881 | 3rd Cir. | 1912
This writ of error was taken to reverse a judgment rendered on the verdict of a jury for the defendant in an action of ejectment brought by the Beach Front Hotel Company, hereinafter referred to as the plaintiff, against Richard R. Sooy, hereinafter referred to as the defendant, to regain possession of a certain lot of ground in Ocean City, Cape May County and' State of New Jersey. The lot is described as follows:
“Beginning at a point in the middle of Atlantic avenue, at the distance of two hundred (200) feet, southwestwardly from the southwesterly line of Sixth street; thence extending along the middle line of said Atlantic avenue southwestwardly, three hundred and thirty (330) feet to where the middle line of said Atlantic avenue intersects the middle line of Seventh street; thence southeastwardly, at right angles to Atlantic avenue, between parallel lines of that width, one of which said parallel lines runs along the middle line of Seventh street aforesaid, the distance of nine hundred (900) feet, more or less, to the high water mark of the Atlantic Ocean.”
The defendant claims title to the premises in dispute as an accretion to certain other lands mediately acquired by him from the Ocean City Association, formed by' the receding of the Atlantic Ocean. It appears from the record that William Hake, a surveyor, made May 22, 1880, a survey of Peck’s Beach,' known as the map of 1880, which was filed in the clerk’s office of Cape May county June 9, 1880. In making his map Hake laid out the territory delineated on it in blocks and numbered lots, and streets and avenues. The Ocean City Association executed July 26, 1880, a deed to Charles Matthews, purporting to convey to him in fee lot No. 985 on the northwesterly side of Atlantic avenue between Sixth and Seventh streets, and executed September 4, 1882, another deed to Matthews purporting to convey to him in fee lots Nos. 987, 989, 991, 993 and 995, on the northwesterly side of Atlantic avenue between the above-mentioned streets. The above lands so conveyed to Matthews July 26, 1880, and September 4, 1882, were contiguous and directly behind the lands in dispute. They were described as beginning on the northwesterly side of Atlantic avenue, each lot being fifty feet wide and exlending northwestwardly between lines parallel to Sixth street and along the northeasterly side of Seventh street one hundred and thirty feet to a fifteen feet wide street. Matthews executed April 10, 1883, a deed purporting to convey to the defendant in fee all the above six lots. Notwithstanding the fact that the conveyances, from the Ocean City Association to Matthews and from Matthews to the defendant particularly described the lands as bounded by the northwesterly side of Atlantic avenue and running thence northwestwardly to the fifteen feet wide street, and referred in express terms to the filed map of the Ocean City Association, delineating the blocks, lots, streets and avenues therein called for, the defendant asserts that his title extends to lands beyond and eastwardly of the confines of Atlantic avenue, including the premises in dispute. To support this claim the defendant contends that at the time of the conveyance of lot No. 985 to Matthews July 26, 1880, the ordinary
*885 “It is a familiar rule of law, that, where a plat is referred to in a deed as containing a description of land, the courses, distances, and other particulars appearing upon the plat are to be as much regarded, in ascertaining the true description of the land and the intent of the parties, as if they had been expressly enumerated in the deed.”
•‘to have and to hold the said lots or pieces of ground * * * mito the said party of the second part, his heirs and assigns, to the only proper use, benefit and behoof of the said party of the second part, his heirs and assigns forever.”
And each of the deeds contained a special warranty as follows:
“And the said Ocean Oity Association for themselves, and their successors do by these presents covenant, grant and agree to and with the said party of the second part, his heirs and assigns, that they, the said Ocean City Association and' their successors, all and singular, the hereditaments and premises hereinabove described and granted, or mentioned and intended so to be, with the appurtenances, unto the said party of the second part, his heirs and assigns, against them, the said Ocean Oity Association, and their successors and against all and every other person or persons whomsoever lawfully claiming or to claim the same, or any part thereof, by, from or un*886 der them or any of them, shall and will, subject as aforesaid, warrant and forever defend.”
“It is obvious that the mere fact that a street is referred to as a boundary and is delineated upon a map indicates nothing as to the title- to the land covered by the street, for the title to the street might well be in a third par-ty, and yet the street properly be delineated upon a map 'and referred to in-a conveyance between other parties. * * * The estoppel dobs not go as far as claimed by the plaintiff in error, and it was doubtless for this reason that this court in a similar case arising out of this very map, did not con-, sider the fact that a lot was bounded upon a street as conclusive upon the question whether or not the line of high water reached the lot as described by metes and bounds.”
The cases relied upon by the plaintiff in support of its contention that an estoppel exists against the defendant by reason of the reference in the deeds to Matthews to the map of 1880 are different in, their facts a'nd principles from and have no application to this’ cáse,
“In the settlement of this controversy, the first question for your determination will be whether the line of ordinary high tide 'at the times the Ocean City Association conveyed to Matthews, at the dates mentioned in 1880 and 1882, was on the lots then conveyed to him. That is, whether it covered not only the whole of the lands within the lines of Atlantic avenue, if extended, but actually washed to or on the Matthews lots themselves, and all of them. If it did, the defendant is entitled to a verdict of not guilty of the trespass and ejectment laid to its charge; and if it did. not, the plaintiff is entitled to a verdict that the defendant is guilty of the trespass and ejectment laid to its charge. * * * I shall not attempt to deal with the facts in detail in this case. Their determination, and the credibility of the witnesses, rests solely with you, and you should deal with that subject-matter as intelligently and carefully as you possibly can. * * * I ought to say, however, that maps which have been made for the purpose of this or any previous trial of the issue now presented are not evidence; they are merely illustrative and serve to clarify the testimony of the witnesses. What has just been said, however, does not relate to the filed maps of the Ocean City Association or to the Matthews survey. These are evidences of a high character, not only because they were made by a prior owner through whom, in effect, both parties claim, hut the Matthews deeds specifically refer to them, that is to the Ocean City Association maps. You will, therefore, carefully study these maps and the evidence relating to them, bearing in mind they were made before this controversy arose. They apparently show land in front, unplotted land. Does that mean, gentlemen, land flowed by the high water, ordinary line of high tide, or not? You will consider that map in connection with Mr. Lake’s testimony, the man who made it, and in doing so, while you consider whether there is unplotted ground there, you will also consider what he said with relation to some wavy lines placed on the map, in which, if I recall the substance of the testimony, the line indicating the ocean line had no significance other than it was intended to indicate that the ocean lay in that direction, that is, eastwardly of the lots.”
“But notwithstanding the blameworthy character of the conduct in question, it is impossible to see how or why it corrupts or taints the verdict. There is not the slightest evidence or suggestion of pre-arrangement or concealment about the matter. The invitation and its acceptance, so far as appears, were absolutely spontaneous. It,is not in character unlike the conduct of a defendant, who, upon the announcement of a verdict of acquittal, rushes*888 forward, shakes hands with and thanks the jurors. The supper was a simple affair, partaken of openly in a public restaurant, at an early hour in the •evening and without any drink stronger than tea or coffee.”-
The first assignment dealing with the question of estoppel, the weight of the evidence, etc., has been sufficiently covered by what has hereinabove been said. We deem it unnecessary to discuss any of the remaining assignments, as we are satisfied that whatever error they may set forth is not of a character to require or justify a reversal of the judgment below. For the reasons given the judgment below is affirmed with costs.